NYTimes OpEd Explains Why Infringement Isn't Theft

from the and-why-it-distorts-the-debate dept

We've argued for years that it's absolutely improper to call infringement "theft." Some, of course, have insisted that since copyright is so obviously "property", it's fine to call infringement theft. However, in a rather brilliant OpEd piece in the NY Times, law professor Stuart Green not only demolishes the "infringement = theft" argument, he also gives some of the history about how it came about:

When Industrial Age Bob and Joe started inventing less tangible things, like electricity, stocks, bonds and licenses, however, things got more complicated. What Bob took, Joe, in some sense, still had. So the law adjusted in ad hoc and at times inconsistent ways. Specialized doctrines were developed to cover the misappropriation of services (like a ride on a train), semi-tangibles (like the gas for streetlights) and true intangibles (like business goodwill).

In the middle of the 20th century, criminal law reformers were sufficiently annoyed by all of this specialization and ad hoc-ness that they decided to do something about it.

In 1962, the prestigious American Law Institute issued the Model Penal Code, resulting in the confused state of theft law we’re still dealing with today.

In a radical departure from prior law, the code defined “property” to refer to “anything of value.” Henceforth, it would no longer matter whether the property misappropriated was tangible or intangible, real or personal, a good or a service. All of these things were now to be treated uniformly.

Before long, the code would inform the criminal law that virtually every law student in the country was learning. And when these new lawyers went to work on Capitol Hill, at the Justice Department and elsewhere, they had that approach to theft in mind.

There's a lot more worth reading in the oped piece, including references to research that shows that, no matter how many times you compare infringement to stealing, people intrinsically just don't believe it. Professor Green and his collaborator Professor Matthew Kugler have done some of this research themselves, where they point out that these language choices really matter. As you can sense from what they wrote about above, when you call things "theft" that have very different characteristics than "theft," it actually influences how people think about these things.

Falsely lumping all of these specialized areas into the "theft" bucket leads law enforcement and politicians to take easy mental heuristics that have them assume that even if infringement is not exactly like theft it's "close enough" that you can treat it like theft and respond to it like theft. And that's exactly what we see happening. The legal proposals and constant changes to copyright law are all about treating infringement more like theft, and believing that greater enforcement leads to less infringement, and that greater "education" does the same. But that assumes that individuals intrinsically believe that making a copy of something is bad, even though in many, many cases they do not feel that way. Calling it theft when they know it's not theft doesn't convince people to stop file sharing. It just makes them respect copyright law even less, since it's clearly completely out of touch with the times and the technology.

The language choices used in this debate matter quite a bit, and it's great that the NY Times opened up its oped pages to someone who's done actual, detailed research on this specific issue.

Reader Comments

Wait, if people inherently recognize that it's not theft, then how come law enforcement the current generation of law enforcement and lawyers don't recognize it. If we all inherently recognize that it's not theft, then education would never work, and no one would believe it.

If we don't necessarily recognize that it's inherently theft, then 'education' would over the long term work (as apparently it has done to these law enforcement and lawyers).

Perhaps that is why so many content providers believe that 'education' works, because apparently it already has on law enforcement and lawyers.

"The language choices used in this debate matter quite a bit, and it's great that the NY Times opened up its oped pages to someone who's done actual, detailed research on this specific issue."

Sure, he's researched whether it fits a normal persons definition of theft, he doesn't seem to have researched the wider issue though.

He quite happily goes along with the notion that "Illegal downloading is, of course, a real problem."
Despite the fact that there is no evidence to back up that claim, what reliable evidence there is suggests it is neither an advantage or disadvantage in general and in specific individual instances "piracy" has been shown to boost sales.

"People who work hard to produce creative works are entitled to enjoy legal protection to reap the benefits of their labors."

Given the stark lack of evidence of harm, that is spurious.

"And if others want to enjoy those creative works, it’s reasonable to make them pay for the privilege"

Make, as in force as opposed to inviting, encouraging or even offering in such a manner that leaves them wanting to pay.

That is only because the more cases of "theft" there is the more money lawyers earn. I think it's as simple as that.
And lawyers tend to always go for maximum punishment, and maximum law squeezing, in this case making "infringement" into "theft".

Language choice is an art form these days

Everything any company PR person or politician says is carefully worded. Just check Obama's new wording on the "individual mandate"; it is now the "personal responsibility" clause. Sounds less "mandatory".

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Education absolutely works.

If I promise you a job making half a millions dollars a year only if you treat infringement as theft, you'd probably learn pretty quick.

If you learned to trust authority (as most law enforcement officials do) and the authority tells you to treat infringement as theft, you accept that, never mind that the authority figure is only telling you what he learned after hobnobbing with those who lobbied him.

If you're power hungry, like most law enforcement officials and politicians, and someone tells you that treating infringement like theft is an easy way to increase surveillance while making it look you are looking out for artists and the economy, you learn really quickly to treat infringement as theft.

Forgot to Mention the Land-Grab

Yes it was interesting to read. However, it never gets into the issue that the content industry is changing the law to make formerly legal activities criminal in nature. Furthermore, that as technology advances that the content industry claims rights that they did not previously possess. It is not simply an issue of infringement but of continued diminution of the public domain and elimination of the civil liberties of the public.

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It's all about looking at the mechanism, and ignoring the results. But in legal terms, the results tell the story. You have something you don't have the rights to, don't have permission to have, and obtained in a manner that is not permitted by the owner.

The result counts. It's just like following a money in a crime - just look to see where the money ends up.

Re: Forgot to Mention the Land-Grab

It is interesting to watch supposed supporters of free trade and free markets try to adapt to technology by attempting to control the choices that the masses make, via legislation, as opposed to changing anything about their business choices and organisational structure.

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Your question is a reasonable one; perhaps the answer lies in the fact that law enforcement/legal training deals with the law as it exists, i.e., copyright infringement is already treated as theft and thus as a crime. As the article discusses, the general populace doesn't seem to agree.

The 'education' approach advocated by some copyright holders smacks too much of the 'War On Drugs' mentality: with the merest contact, you're doomed. Smoke a joint and you're doomed to shooting heroin; listen to a downloaded mp3 and next you're throwing your children through the window to get at the computer to steal Steal STEAL.

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It's a matter of defining rights, there are many things that people enjoy that they haven't paid for.
Fresh Air, Being alive, The laughter and chatter of happy children who are too far away for you to hear what it is they are saying or what they are laughing at.

Remembering a street performance you enjoyed, repeating that really good joke that Al from Accounting told you.

At some point we enter into an area where someone has decided that although it will do the orginator no harm if you happen to have a copy of and enjoy the thing they made; without making a payment to them that somehow, this is something, is a thing that you have no right to.

I claim the right to anything I see or hear, to enjoy or not at my own determination, I admit no right to someone else to control those rights of mine.

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Exactly. For many in the legal profession, it's not so much about what's right or wrong, or even what the law actually says, but what can convince others to pay them more billable hours. I think if more people did a cost-benefit analysis of legal vs non-legal actions, they will get that the legal option isn't usually the most cost effective.

Take software patents for instance. They're often written by lawyers to be as intentionally vague as they can possibly get pass the PTO, knowing that will lead to a greater chance of a lawsuit. Settlement negations are good, but years long litigation is gold. They couldn't careless if the patent is a turd that eventually gets invalidated, even that guaranties years of billable hours.

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"People who work hard to produce creative works are entitled to enjoy legal protection to reap the benefits of their labors."AS ARE THEIR CHILDREN AND THEIR CHILDREN AND THEIR CHILDREN AND TO THE MAXIMUM EXTEND POSIBLE YOU FREELOADING PIRATES.

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"supposed supporters of free trade and free markets"

Corporations and their shills are only in favor of the free market insofar as it supports their interests in fighting government regulation. If they can get a government-granted monopoly or a tax subsidy, they're all over the government having a hand in the market. They're like the old people on Social Security and Medicare saying that socialist programs are evil.

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"If you learned to trust authority (as most law enforcement officials do)"

I disagree. Some individuals swear to fulfill a position and the duties within that position. And though they may disagree with the duties defined in that position, they agreed to do a job.
CIP:
I have a friend through work that is a X-Marine. After discussing conspiracy type things(conspiracies to some, facts to others.)I asked him how he could keep doing what he was doing with all that he knew. He looked at me serious as a heart attack and said, "I agreed to do a job for my country, and put my personal beliefs aside to do the best job I could. Other service personnel depend on me to do what is asked without question." That was just about 6 years ago and I remember it word for word.

So to get back on point:
If you learned to trust authority...
Trust? Your boss tells you to do something, unless it goes against every moral fiber of your being, and you are willing to lose your career over it, you will do it.

"If you're power hungry, like most law enforcement officials and politicians, and someone tells you that treating infringement like theft is an easy way to increase surveillance while making it look you are looking out for artists and the economy, you learn really quickly to treat infringement as theft." - Still does not mean you believe in the lie, just you are willing to exploit it.

Re: Forgot to Mention the Land-Grab

Wrong Word

I have to disagree with this. The problem isn't the misappropriation of the word "theft" but rather the word "property." An idea is not property. It isn't. I don't care what judge or tycoon or even what common man decided that an idea, or any other intangible thing, is property, but he, she, or they were and still are wrong. IF they were correct that an idea has the potential to be property - to be owned by a single person or entity at the exclusivity of everyone else - then yes, theft is the RIGHT word because property CAN be stolen, and the crime of stealing property is called Theft.

So no, the use of the word theft is not the problem here. The real culprit of this word crime is the word property. Once we fix the error of people thinking they can OWN a THOUGHT, then it cannot be stolen as it is no longer a single person or entity's holding to be stolen.

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"You have something you don't have the rights to, don't have permission to have, and obtained in a manner that is not permitted by the owner."

According to the revisions of the entertainment industry, we have fewer rights than we actually have under the law because they pretend that fair use doesn't exist, that home copying for personal use is piracy, and checking media out from the library is a lost sale. The permission of the owner isn't the only authority as to whether something is legal or permissible. If it were just up to the copyright holders, every single use and copy would be paid for, fair use wouldn't exist, everything would be licensed to maximize profits and strip value from the sharing of our own culture.

Society, through its government, permits creators to have a limited copyright on their works in order to benefit society. Copyright holders (who are not always the creators) have just used government corruption to pervert this principle so that copyright lasts longer than a generation and copyright claims are able to be used to quell Constitutional freedoms such as the freedom of speech and the press.

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If you don't like the access to the current "culture" then make your own. Nobody is forcing you to deal with copyrighted material or the rights holders.

It's what I don't get - every argument comes down to some sort of justification for pirating stuff. Your whole answer is about WHY you (insert non-theft word here), and not why it is still illegal regardless.

Fair use exists, but it is pretty narrow, and in questionable circumstances becomes more of a defense than an asserted right. It still doesn't change one basic thing: You can make your own, you can "roll your own" and not have to deal with copyright holders - so why not do it that way instead of banging your head against the wall of copyright?

Illegally providing a file for download IS INFRINGMENT - that much of the article is TRUE. The person actually doing the download is committing THEFT. The question to be asked is why, psychologically speaking, the populice doesn't associate file sharing with theft. The answer is really pretty simple - people generally view themselves as "good" and many, many people have illegally downloaded music. Because of the negative connotation associated with the word "steal" and "theft" people psychologically don't want to label their own activity as such. Instead they prefer benign terms like "sharing". I would like to see a psychological study done in which participants are put in the place of the entertainment industry and encouraged to sale their recordings through downloads and then told of the amount of people viewing their content without paying. It would be interesting to see how many of those people in the study would change their viewpoint on whether illegally downloading content is theft.

Re: Wrong Word

"So no, the use of the word theft is not the problem here. The real culprit of this word crime is the word property. Once we fix the error of people thinking they can OWN ANYTHING, then it cannot be stolen as it is no longer a single person or entity's holding to be stolen."

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That's funny you mention rights and permission. When did the author attain the rights and asked permission to appropriate the common culture of humanity as a platform upon which they build their works? The truth is, under the copyright system, authors take our own culture and sell it back to us under monopoly control. They take that which belongs to all of us and then claim ownership over it. To say people are stealing from them while they do the exact same thing is hypocritical. It's those that promote copyright that are the real thieves.

Do they deserve to be compensated for their work? Yes, without a doubt, but they are going about it completely the wrong way. Selling copies of our culture, remixed, is of the most flawed ways to run the business. It was always flawed because it relied on the inability of others to make copies on their own (which the internet has obliterated). So the solution lies in shifting from selling the intangible results to selling the finite time and labor (like any common occupation) that it takes to make it in the first place. Just as Michelangelo was commissioned to paint the Sistine Chapel, rather being paid for a copy of the work, so should artists today seek people to pay for the effort it takes to transform culture into new expressions. It's the ability to create that we should hold in value, not to hold value to artificial units of imaginary "property".

If you haven't picked up on it yet, copyright is wrong in its application and in itself. Much less, infringement doesn't equate to "theft" on any philosophical level. Were you to call it theft, you must also hold it to authors for doing the same since they could not create were it not for the ability to take the works of others to transform and combine them into new expressions (they do, consciously or not). If it is theft we have committed, then so have the "artists". In order to get along in this new environment for communication, artists will have to let go of trying to control copying, since they never really had the power in the first place, and embrace a new model that thrives in spite or because of the unchecked propagation of culture.

What is and isn't theft

A copyright to a particular work is a piece of property in the sense that I can buy or sell it and it (at least potentially) has value. Thus, if I own a copyright to Book A, that is property. What would not count as theft is someone illegally copying Book A, since I still own the copyright. What would count as theft is if somebody stole that copyright. For example, if through some sort of legal trickery or some forging of records, someone made it appear that they produced or legally bought the rights to Book A and thus started effectively stealing my royalty payments.

"Copyright infringement" is the only term that can capture what unauthorized copying actually is, since a copyright grants me the right to control the copying of a work, and if someone copies something without my permission, they have infringed my copyright powers, but nothing has been stolen, since a new copy is non-rival. Someone stealing a copyright is rival, since only one of us gets the royalty payments (or one only gets more of them to the degree the other gets less) or gets to negotiate the move rights.

Whether it is morally justifiable to grant such a copyright is a question for another day.

Okay, so, putting "theft" as you mean it aside for the moment, there's this broader, abstract class of actions where you obtain value that societal rules and conventions don't say you're entitled to.

Examples of things in this broader, abstract category:

* plagiarism: claiming to have authored something that you didn't
* trespassing: being on land that you don't have permission to be on
* stealing in the concrete, narrow sense you're insisting is the only correct use of the word: taking a for-real physical thing someone else legitimately has, so that they don't have it anymore and you do, without agreement/permission
* fraudulent impersonation: pretending to be someone else in order to obtain a benefit you wouldn't have gotten if your true identity had been known by all parties (which I'm guessing you'd be angry at people for referring to as "identity theft")

What word do *you* suggest be used for this broader, higher-level, abstract concept?

(If you want me to stop calling copyright infringement "stealing", please try to work with me here: you've got to give me a better word for that higher-level, abstract, "umbrella" concept. Were those examples enough to get the idea across? Give me a better word for this superset and I'll strongly consider changing my vocabulary. Today, of course, I do use the word "stealing" for this concept.)

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The word they want to use is "Sharing", like sharing your lunch. They just don't want to admit it's sharing SOMEONE ELSE'S lunch. They want a friendly, happy word. Sharing sounds so sweet, and so much like the wonderful values we would teach our kids...

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It's what I don't get - every argument comes down to some sort of justification for pirating stuff.

It's not about justification, it's about reality.

Say you made your living selling lemonade. It's a good living and you are happy. Then one day, someone comes along and sets up a table next to your stand and gives away lemonade for free. Now you have a couple of choices, you can either make your lemonade better, or you can try to stop the lemonade table from being near your stand. You try the second option, and several times the lemonade table is forcibly shut down by the authorities for hurting your business, or if there is no reason at the time they make up a new reason to shut it down, but every time someone sets up another table. At some point, you have to accept that you need to change because that table is not going away. Whether that table is right or wrong really has no meaning to you at this point. It is there and your efforts to get rid of it have failed. No apply this to the current situation.

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"People who pay small royalties to the people who work hard to produce creative works are entitled to enjoy legal protection to reap the benefits of their labors. AS ARE THEIR CHILDREN AND THEIR CHILDREN AND THEIR CHILDREN AND TO THE MAXIMUM EXTEND POSIBLE YOU FREELOADING PIRATES."

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When we copy, we justify it. When others copy, we vilify it.

Disney is a prime example of this mentality. They blatantly copied the works of others to use for their own profit and worked hard to make sure others couldn't do the same to them. So don't give me this load of bullshit that downloading is "theft". You need to realize that copying, transmitting, and receiving art is communication (a.k.a. speech) and it's ludicrous to think that anyone has the right to own and control speech. That's censorship on its face.

Falsely lumping all of these specialized areas into the "theft" bucket leads law enforcement and politicians to take easy mental heuristics that have them assume that even if infringement is not exactly like theft it's "close enough" that you can treat it like theft and respond to it like theft.

Perhaps I tend to lean towards the conspiracy theory side of things, but this has always struck me as a concerted effort by the legacy players to turn copyright infringement from a civil tort into a criminal one where the state foots the bill for investigation and prosecution.

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That would imply that this "someone else" no longer has their lunch. Imagine, if you will, you have a magic lunchbox that could replicate your lunch ad infinitum. You could share your lunch with everyone around you without diminishing your own lunch. Would it be morally justified to withhold this wondrous ability to provide lunch to everyone who needs a lunch? Such a lunch box would be a great benefit to everyone that needs a meal, just as the unfettered ability to copy and share art would be a great benefit everyone as well.

The only thing that's sneaky is your attempt to play semantic games to further your agenda.

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Actually, I think it all comes down to what results you look at.
People on one side tend to do what you did - see "somebody got something without paying for it", whereas people on the other side tend to see "nobody has any less than they started with".

Then the two sides go on to look either at the "unpaid for benefits" that the infringer obtained or the "losses that the rightsholder suffered" in order to decide how bad the act was. That's why you end up with the one side saying "he has songs that would cost him thousands of dollars to buy and he hasn't paid a dime" while others say "if he hadn't downloaded them, he just would have done without, plus he paid to go to three concerts last year - this is just advertising".

Re: Re: Forgot to Mention the Land-Grab

Until the DMCA (except for commercial infringement which happened with the Copyright Act of 1976) copyright infringement was entirely a matter of CIVIL LAW not CRIMINAL LAW. In other words, you couldn't be arrested and sent to jail for it. I you infringed on my copyright, I could sue you and if I proved that I had damages caused by the infringement the court could order you to pay me for the damages. If I could convince the court that it was malicious and bad enough I might be able to get them to order you to pay punitive damages. That was it. There was not criminal charges to be filed.

Re: Re: Forgot to Mention the Land-Grab

Until the DMCA (except for commercial infringement which happened with the Copyright Act of 1976) copyright infringement was entirely a matter of CIVIL LAW not CRIMINAL LAW. In other words, you couldn't be arrested and sent to jail for it. I you infringed on my copyright, I could sue you and if I proved that I had damages caused by the infringement the court could order you to pay me for the damages. If I could convince the court that it was malicious and bad enough I might be able to get them to order you to pay punitive damages. That was it. There was not criminal charges to be filed.

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Infringement: a breach or infraction, as of a law, right, or obligation; violation; transgression.

Copyright: the exclusive right to make copies, license, and otherwise exploit a literary, musical, or artistic work, whether printed, audio, video, etc.: works granted such right by law on or after January 1, 1978, are protected for the lifetime of the author or creator and for a period of 50 years after his or her death.

I believe when we combine these two words through a magical function of language that is called a phrase.
(a sequence of two or more words arranged in a grammatical construction and acting as a unit in a sentence.)

We find ourselves with "copyright infringement" which certainly sounds like what happens when one duplicates something which is protected by copyright. Doesn't sound like stealing to me!

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I can point out specific individual instances where piracy has lead to reduces sales - lots of them. Make as in force, yes, that's generally what happens when you SALE something as opposed to GIVE it away. No one forces anyone to buy something, if they don't want the service or item they are free to avoid it. If they WANT the service or item and the item is offered for SALE they are required to pay for the item. That is called commerce.

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You seemed to have misread my statement as a defense of copyright infringement, and in one sense it was, but only because the IP maximalist view entails considering any experience of copyrighted media without paying for it five times over to be piracy.

I was talking about the rights of the public to the public domaine, which IP maximalists have taken at the point of a lobbyist's sword on the high seas of legislation. We used to be able to make home copies for backup purposes, but the entertainment industry calls that piracy. We used to be able to bypass copy-protection for fair-use purposes, but the DMCA changed that.

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You seemed to have misread my statement as a defense of copyright infringement, and in one sense it was, but only because the IP maximalist view entails considering any experience of copyrighted media without paying for it five times over to be piracy.

I was talking about the rights of the public to the public domaine, which IP maximalists have taken at the point of a lobbyist's sword on the high seas of legislation. We used to be able to make home copies for backup purposes, but the entertainment industry calls that piracy. We used to be able to bypass copy-protection for fair-use purposes, but the DMCA changed that.

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Are we going to go down the "lawyers are the devil" trail again. Give it a rest. If your neighbor runs an extension cord into your house and infringes your electricity, lets see how you feel about that when you get your electic bill.

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just because you don't like the term theft doesnt mean that illegally downloading content isn't theft. It seems you are taking personal offense to the term, maybe it's hitting a little too close to home for you.

Infringing upon the rights to distribution would happen when someone puts the file up for download through a torrent site. The theft part doesn't happen until someone illegally downloads the data.

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I'll concede that a small percentage are, but the vast majority are not. Most people who pirate have already either purchased the content and want it in a better form than they got, will purchase the content if they like it, or will never purchase the content even if they couldn't get a pirated version.

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Nice try at twisting the language but... No.

I take something I have in my possession and let you make a copy of it I am sharing it with you. I take something of yours such that I have it and you do not with out your permission then we are talking about theft.

Now let's delve into your foray into the human psyche...

First, is unauthorized file sharing of copyrighted material infringement? Yes.
Is it illegal? Yes.
Is it a criminal matter. Yes. (Only because the industry illegally bought the laws to make it so, but that is a whole different argument altogether.)
Is it theft. No.

Part of what you said is actually correct. The words "steal" and "theft" DO have a stronger negative connotation than the word infringement and for good reason. They have a severity worse than infringement. To use the "theft" or "steal" for an act of infringement is to unfairly afford the negative attributes that it DOES NOT POSSESS. It is attempting to manipulate people by inaccurately describing one thing by presenting it as something else. In short, it is a lie, told to mislead and manipulate the public for the industries own personal gain.

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So if everyone who didn't pay for a that you created chose instead to completely ignore your media's existence and went to someone else who gave things away for free, you'd really be fine with that and not be crying about these lost sales?

Would you also be fine with the fact that all the people who could have interacted with your were also now no longer talking about it?

Quite the interesting prospect "copyright infringement is hurting our business, because we cant make money off what we're making. But you should just not acknowledge what we make exists if you wont PAY PAY PAY!" Sounds like a good plan.

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And that's the problem right there. You are trying to tell others what they can or can't do. Within the bounds of the law sure. But still, trying to tell others what to do.

That's the problem. People have more options than what you allow for. Right or wrong, moral or immoral, legal or illegal. These are all irrelevant points to bring up. Primarily because they all differ from person to person.

The fact of the matter is people CAN do more than those three things you mentioned. That is a fact. You don't like it/approve. Also fact. But no one cares what you like or don't. Apparently, a majority of people think it's okay/acceptable or are indifferent. Which means the will of the people is not on your side and thus laws need yo be changed in the US to reflect the will of the people. Not corporations.

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They paid the public for co-opting stories from the public domain so that they could then wrap them up in copyright and then bribe lawmakers to get that copyright extended ad infinitem? When and how much?

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Let's do this the right way, say I discover a way to duplicate bars of gold. Now I go about on my merry way touching people's gold items and duplicating them. Is it amoral for me to make everyone everywhere's gold less valuable by duplicating it more and more? Is it wrong to then duplicate this gold more and more to give out to everyone around me that asks?
Quite an interesting thought experiment for the copying question.

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Actually I think if you will look at Disney productions since the mid 1950s you will find that they paid rights holders for the creative works on all but a few. You seem to be under the DELUSION that Disney creates a lot of content from works in the public domain. Please do a quick search of Disney works and you will discover quite quickly that only a handful of their productions are sourced from works in the public domain.

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How many of Disney's films were created from works in the public domain? What percentage of their productions? Google "disney films" and you can find a list of their released works and you can see for yourself. You will be surprised at how few there actually are.

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Do you think it has anything in common with trespassing, or with patching into your neighbor's cable system to watch cable without paying for it, or with piggybacking on someone's wifi without their knowledge or consent?

If you think it does have *anything* in common with those, and if you wanted some kind of word to talk about that broader group of activities in the abstract, to draw attention to the thing they have in common, can you suggest a word that we might use?

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The problem is that you ARE NEVER THE RIGHTFUL OWNER OF MUSIC. You aren't paying to OWN THE RIGHTS TO THE MUSIC OR A MOVIE. You are paying to license a copy of it. If you give away something that NEVER belonged to you, that to which you never had the rights, you are facilitating theft. You have infringing upon the copyright owner's right to distribution. When you download something from someone who is not the rights holder or someone who has not be granted the authority to distribute the work, you are commiting THEFT. And no amount of hope is going to excuse that.

Re: What is and isn't theft

What has been stolen is the revenue from the rights holder. When you take that to which you are not entitled regardless of it being a tangible thing (theft of service for example), you are stealing. It doesn't matter whether it is a copy, whether it has diminished the original in some way, or not. By obtaining that to which you are not authorized you have stolen something.

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Yes, amateur video now is produced at a much larger rate than professional video. I guess this is what happens when you give the tools to make stuff to everybody. Not everyone watches amateur video, just like not everyone watches professional video.

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Illegally providing a file for download IS INFRINGMENT - that much of the article is TRUE. The person actually doing the download is committing THEFT.

This is completely false. They are committing infringement -and then, ony if they are making their own copy. (For instance, buying a bootleg DVD is not "theft," nor is it in any way unlawful, as far as I can tell.)

It is not "theft," because theft requires that the victim not have the thing that was stolen. Likewise, "theft" isn't merely gaining or using something without the owner's permission, because then fair use would be "theft," and public libraries would be offering stolen goods.

The question to be asked is why, psychologically speaking, the populice [sic] doesn't associate file sharing with theft.

Probably because every single moral code says that creating abundance from scarcity is morally good. See e.g. the parable of the loaves and the fishes from the New Testament. When people are sharing files, they are doing nothing different than what Jesus did, morally speaking.

If the fishmongers and bakers went to the Romans and claimed Jesus is putting them out of business, that would not make the feeding of the 5000 less moral. It would make the fishmongers and bakers immoral.

Re: Re: Re:

The problem is that you ARE NEVER THE RIGHTFUL OWNER OF MUSIC.

Tell that to the idiots who think they are the owners of it.

Seems no matter how many times it's beaten into their heads they still never give up believing it. I guess they hope of they continue everything will suddenly change one day and be perfect copyright ponies & rainbows...

Re: Re: Re:

The problem is that you ARE NEVER THE RIGHTFUL OWNER OF MUSIC.
The first sale doctrine says otherwise. My copy is my property. Your copyright is an abridgement of my property right.

When you download something from someone who is not the rights holder or someone who has not be granted the authority to distribute the work, you are commiting THEFT. And no amount of hope is going to excuse that.

No amount of assertion can make a statement true. Either prove it with real verifiable facts or shut up. And no, anecdotes, flimsy analogizes and emotional tantrums are not verifiable facts.

Re: Re: Re: Re: Re:

Re: Re: Re:

" If your neighbor runs an extension cord into your house and infringes your electricity..."

Anytime you analogise something that's infinitely reproducible with something that's not only finite but is often in short supply, you look like a clueless idiot. You might want to avoid mistakes like that.

Re: Re: Re:

Let's be more straightforward with this. You're only using gold because it is considered valuable. The thing is, we don't actually trade gold, we trade money. So, let's replace "gold" in your scenario with "money".

Can you go around duplicating money and giving it away? Without legal repercussions?

Re: Re: Re: Re:

So they are greedy because they expect to be paid when someone watches/listens to the work for which they paid?

Um, excuse me? These people get paid millions to make this shit upfront. I don't need to continue giving them tit afterwards, no other type of job I know of has this kind of toll booth mentality, and your telling me it's NOT greedy??

Re:

Just so you know: many of those broader, abstract classes are not unlawful in any way. (Plagiarism, for example.)

Others are treated the same under the law ("theft, conversion, or fraud"), and the law intentionally treats copyright infringemet as distinct from them.

If you want to use "theft" or "stealing," then fine. Just be aware you're using it in the same way as saying someone "steals" your girlfriend, "steals" a glance, "steals" a base, or "steals" your thunder.

Re: Re: Re: Re:

What are you on about? Of course there are more conceivable options, just as there are when passing through a subway turnstile. You can not pay and not ride, or you can pay and ride. Those are the legal, acceptable options. BUT, you could hop the turnstile. You could also go feed a cat. Or take off your clothes and yell at a station agent. You could fall asleep standing up. You could invoke a dimension to swallow you from this mortal plane.

What's your point?

It's like your saying that laws against assault are invalid because people still have the option to assault people. Well, duh! The option to assault is why we have a law against it. We don't pass laws to prevent activities that can't occur.

Re: infringement-theft

Re: Re: Re: Re: Re:

The point, as you rather obviously missed, was that there are more options than the original AC, not yourself, stated. In regards to the specific things he said. I.e. Do without. Pay. Or make your own.

Technology and acceptable practices have added "copy" to that mix. Which is the rather obvious thing and which he and yourself harp on about regularly.

Nor did I say, or even remotely imply, that laws against assault are invalid because people can still commit assault. I merely said there are more possibilities than he's allowing for.

But being obtuse and trying to spin something into something else are your strong points.

Now shoo. The adults are trying to have a talk. If you don't have a handle on basic reading comprehension, go somewhere else and when you've mastered the skill come back and join us.

Re: Re: What is and isn't theft

What has been stolen is the revenue from the rights holder.

Really? You mean downloading a song that sells for a dollar means I took a dollar from the copyright holder? And that if I downloaded 1000 songs, I took 1000 dollars? No, that ain't right. According to the RIAA, it's $100,000 per song, so that's really $100,000,000!

Well, if this money is real, and I actually stole it, where did it come from and where did it go? It didn't come from the copyright holder, as they didn't lose even a cent from their accounts or holdings. I didn't get it either, because I surely wouldn't see so much as a dime. I certainly couldn't sell those 1000 song for 1000 dollars. No wait, that's really $100,000,000 that I don't have nor could I get.

So, no one would really loose or gain any money. Oh, that's right, I would steal their copyright! No wait, they'd still have that too. Well, if no real money or property was taken, that only leaves copyright infringement.

Re:

Wait, so let me get this straight darryl, the Supreme Court is the main advocate behind the weasel word of "infringement"?

Because they are the ones who first came up with the term. Downling v United States (1985). I believe that was the same case where they ruled copyright infringement (i.e. infringing on the copyright of another, or to put it simply for your simple mind... making a copy) CANNOT be equated with theft. Why? Because nothing was stolen.

Hmm. Wait. I just realized what you're saying. That the Supreme Court Justices who made the ruling are actually criminals and were just trying to justify and feel better about their crimes.

Wow. Darryl. Taking shots at Supreme Court Justices now. I'll admit, that's a step up for you. Usually your rants focus on Mike and make little to no sense. Emphasis on "no sense". Hmm. Me thinks you should ACTUALLY STOP AND THINK BEFORE YOU EVEN GET NEAR A KEYBOARD. Why? Because your stupidity is showing.

Not too mention the fact that this article is about a piece in the NY Times. An American newspaper. Weren't you saying just the other day that unless you live in and a citizen of a country and an event relating to said country you should not have an opinion? I'm pretty sure that was you in the ACTA article yesterday or the day before. I sense a great amount of hypocrisy coming from your direction.

Re: Re:

I can point out plenty of instances where piracy has increased sales... and I'll even share a few!

1. Rovio: Angry Birds being overly pirated in China (when it was originally unavailable there) created a super strong foundation for Rovio to come in and monetize the Chinese market, and they did.

2. The Grateful Dead: Discovered that by allowing their fans, called Dead Heads, to record their shows, it actually increased sales.

Now here are some examples of were extreme anti-piracy measures has had a negative effect on companies:

1. Ubisoft: need I say more?

2. StarForce: a game with DRM so bad it literally broke your computer.

3. Early Steam: In the early years of Steam the DRM was pretty spotty and often prevented players from playing games they had legally purchased, including on the release date of Half-Life 2. (Thankfully Steam is much, much better than it used to be.)

Re:

God, you sound like Obama back at the start of his term criticizing other countries for not "helping" him to close Guantanamo.

If you want to use a different word to describe something that you already have the proper words for, that is entirely up to you, but you want a word to lump together, vastly disparate breaches of civil law with a breach of criminal law and you want that for only one reason, to make an infringement of civil law sound like a crime.

The only people who would "work with you here" for that would be people who like you also wish to use the wrong words to create a false impression just as Obama made clear that the only help he was willing to accept from other countries was if they agreed to treat people who had comitted no crimes and/or who had never been tried or been given any chance to defend themselves as if they were convicted terrorists and agree to imprison them in their countries so he could stop imprisoning them in Cuba.

Re: Re: Re: Re:

So they are greedy because they expect to be paid when someone watches/listens to the work for which they paid?

Greedy? Maybe. Expecting to be paid simply because they paid for someone's work, however, is completely unrealistic. Unless they actually do something with the work that people want to pay for, then they shouldn't set their expectations very high. Expecting to get money for doing nothing but making copies, when everyone can do it themselves for free, isn't enough any more. Nor is anything else that completely ignores customer demands. And no, everyone doesn't want everything for free. Things like live shows and merchandise are still turning a nice profit.

Of course, that would require them to stop demanding the world to conform to their idealized vision of it and come to grips with reality. Once they do that, they can finally figure out what's actually profitable. There's a lot of money on the table, they're just standing at the wrong one while squawking that they deserve to be paid.

Re: Re: Re: Re: Re: Re:

To be fair, the original AC was listing legal options.

Obviously there are extra legal and illegal options.

Laws can of course change, things we consider utterly immoral and definitively illegal now were once both moral and legal, such as slavery.
Things that were considered utterly immoral and definitively illegal are now both moral and legal, such as same sex marriages.

This happens when what is against the law does no harm to others and when what is lawful is actually harmful to others.

We don't envisage making assault legal, because it harms others, many don't appreciate ratcheting up laws and actions against people who individually infringe copyright because a lot of people suspect that no one is actually harmed by that and the facts seem to be supporting them there.

Re: Re: Re:

Trespassing? No, physical land is a finite property. And believe it or not, in some states you're actually liable if someone, trespassing or not, gets hurt on your property. Things such as insurance liabilities are a real cost.

patching into your neighbor's cable system to watch cable without paying for it? No. Providing transmissions over cable coax requires maintaining signal load and quality. Someone using a cheap tap can interfere with the service of paying customers.

piggybacking on someone's wifi without their knowledge or consent? No. This is just another form of trespassing. Not only does that use internet bandwidth--which may be capped--and possibly expose the all of the computers on the network to being hacked, it also makes the connection owner liable for intruder's online actions.

Re: Re: Re:

Lol. That last line was hilarious.

But wow. You nailed darryl exactly. I've actually seen him say things to exactly that effect before. It's just a bit hypocritical of him, he tries to force standards on everyone else (and judges them for spelling or grammatical errors) but he overlooks that he's being two faced about his positions and opinions and judgments.

I'm voting your comment funny and insightful though, just for how dead on you were about the "nobody".

copyright

I've just patented a new language system which uses an English language plug-in in which the concepts are separate from the words. It appears to be identical to the version which you all seem to be using, so you're all going to have to pay big-time. This forum is a flagrant example of intellectual property theft. I've made note of all your names and you'll be hearing from my attorneys.

Re: Re: Re: Re: Re: Re: Re:

I get this, but the point I was making is that there are more options. Telling people "YOU CAN ONLY DO THIS!" is not going to make much of an impression on anyone, besides the obvious one (that someone is trying to push their beliefs on others or trying to control others).

The fact of the matter is, legal or not, there are plenty of options one way or another. But by stomping your feet and crossing your arms and saying, "NO!" you aren't going to accomplish anything. Which is my other point. People can now do more than what the AC approves of or the law says is acceptable. Some might not like that. Tough. Deal with it. But deal with it intelligently. Or keep pissing and moaning, but it won't get you anywhere just the same.

Re: Re:

"Make as in force, yes, that's generally what happens when you SALE something as opposed to GIVE it away"

Sheesh, where on earth do you shop.

Most retailers don't MAKE you buy anything, they entice you to buy things, they try to make it as easy as possible for you to buy things from them. They keep stock on hand so that you buy from them because it's there rather than going elsewhere, if you are going to shops where they MAKE as in force you to buy things, call the police.

Re: Re: Re: Forgot to Mention the Land-Grab

Oh I'm sorry, are corporations not keen on free trade and free markets. Have I gotten confused about who the people are who are constantly looking for reduced government regulation and barriers to trade?

Re: Re: Re:

I now watch more professional-quality content on YouTube/Vimeo/etc than new Hollywood movies. This is a direct result in the massive increase in the amount of this stuff on YouTube, and the oversupply of crap coming out of Hollywood. I still love watching good movies, especially on the big screen, but you'd be a fool to think that free, legal, high-quality content isn't now a serious competitor. The studios blame piracy but ignore all the other ways we can entertain ourselves these days.

Re: Re: Re:

"If you don't like the access to the current "culture" then make your own."

They have, that's what the MPAA and their ilk are complaining about, people making their own access to current "culture"

Oh you meant a different thing, you meant everyone should make their own individual common shared culture.
Well in more and more numbers people are contributing to shared culture, but it is quite simply foolish to insist that people shut their eyes and ears to the parts of common culture that they don't and in some cases can't contribute funds too.
Once it is out there, it is there and nowadays available whether you or Mike or I or anyone else likes it.

People on this site, suggest how to maximise revenue in the environment that exists, beware of people who tell you they can maximise revenue by replicating restrictions that quite simply no longer exist. The people who push DRM are no more protecting your revenue than the gypsy selling lucky heather but they are a lot less honest about it. They won't help you increase revenue and they aren't interested in doing so, all they are interested in is getting their hands on a percentage of the revenue you do get, which in turns means you end up with less not more.

A great deal more revenue would be made if businesses stopped buying the snake oil and started following the kind of advice that Mike offers.

But if you are not convinced, I will spin on a dime and guarantee you that revenue can be increased by ignoring the current realities and I will show you how to do that, but first I have this bridge in Brooklyn that I can sell you and I can give you one hell of a deal on it.

Re: Re: Re: Re: Re:

Re: Re: Re: Re:

So you're of the mindset then that if we duplicate *ANYTHING* it's wrong and should have legal repercussions?

And you're right I did choose gold over money for a simple reason, I am fully aware of the legal status of producing counterfeit money. However my point was more that if one can suddenly produce more of *something* that is valuable and begins to do that, is that action necessarily wrong?

Re: Re: Re: Re:

Ill add in, what about other things that are valuable due to an imposed scarcity, like diamonds, what if I suddenly find a new huge source of diamonds that aren't controlled by the diamond cartels and flood the market with these diamonds am I wrong then? Lots of various ways one can make this argument and bend it one way or another I suppose.

Re: “... that is not permitted by the owner.”

Which is where your argument falls down. What I am holding in my hand right now is my property, and not anybody else’s. So whatever I do with it only requires my permission as the owner, not anybody else’s.

Re: Re: Re:

I sure can, I just suggested it.
"infringement" or "infringement of rights"

Copyright implies that one has quite literally the right to copy something, when someone else creates a copy they are infringing upon the person who has the copyrights for the item in question.

There are no similarities in those things other than joining a wifi network without authorization or joining a cable network without authorization sound very similar to going onto someone's land without authorization. But the only real similarity between infringing on copyright would be that you're doing it without authorization, so I suppose if one wants to stretch really really really hard, we could say anything that one does without authorization is...unauthorized...

But no I do not think that infringing upon a copyright is theft of any kind. Its more akin to counterfeiting, even in its consequences, after all every dollar printed or every song given out, makes every other one of these things slightly less valuable, but that is still not theft no matter how one tries to spin it.

topless infringing

Infringing is clearly not theft as theft is known in the common law. It's more like peeping on the topless lady next door who is parading around with her windows open. Everytime you look at her, she becomes less desirable. It's naughty, but it's not theft.

Re: Re: Re:

It's not important how much of it goes unwatched. I would agree with the assessment that much of it is unwatchable to most of the population. However, just by sheer numbers, the amount of watchable amateur content outweighs the amount of watchable professional content.

Re: Re: Re: Re:

I can't claim credit to the "nobody in Australia" bit. darryl was the one who mocked Mike's earlier entry about some Australian experts suggesting that Australia might consider going back on their pro-ACTA vote. He criticised Mike for being "a nobody from America quoting a nobody from Britain quoting a nobody from Australia".

I responded to him, "And where are we getting this criticism from? Oh, that's right, a nobody from Australia."

Re: Re: Re: Re:

Exclusive rights to distribution that should never exist in the first place.

That is why people know granted monopolies are bad, because it stops others and since they are artificial not natural monopolies they can't adapt quickly enough to a changing environment and just like the dinosaurs those laws will become extinct in time.

Re: topless infringing

Common law is that body of law crafted by judicial decisions. In many instances the common law is supplanted by statutory law. If a legislative body decides to call infringement "theft", then it is certainly free to do so, and that new appellation will thereafter govern as to the subject matter of the relevant statute(s).

Re: Re: Re: Re: Re:

Pray tell, why should exclusive rights, distribution or otherwise, never exist in the first place? Is it because one who creates a truly creative work should enjoy no rights whatsoever in the work under our laws?

Re: Re: Re: Re: Re: Re:

It's about asportation

The US definition of theft (which is really larceny) used to include a required element called asportation, which is still a required element, as is intent, in most places in the world.

Asportation is the actual physical removal or "carry away" in which a defendant must after having obtained property in question must also move it from its original position.

The US Model Penal Code totally eliminated the required element of asportation and only requires that any defendant exercise what is classified as "unlawful control" over that property.

This is why the US (and people who should know better) think that copyright infringement is theft.

Interestingly common law larceny (not to be confused with the Criminal Penal code) in The USA can not be committed against intangible things (or land) which includes identity, ideas, information, contracts, wills, and intellectual property though the paper upon which they are written is a specific larceny of that actual paper.

The misuse of some ones copyright is NEVER larceny and never the absolute common definition of theft that the common-man knows.

The problem is, as the article states, lawyers and police don't work on what the common sense approach means and instead can only work with what they have in front of them. In America that is the Model Penal Code.

I don't have to work with the US's Code, so to me copyright infringement is Never theft and NEVER larceny, though it's getting to the stage where it could be considered a type of conversion, but that's the subject of much controversy and PHD's

Re:

Oh Darryl I am too excited that it is TGIF here so having no interest in supplying any original thought to your stupidity I will instead point you towards the greatest link that is very aptly directed against YOU!

Re: Re: What is and isn't theft

taking revenue that has not even occurred yet is in no way shape nor form stealing, larceny, conversion, nor any other crimes to do with property, at most you might have an action for restraint of trade or even an anti-trust action, or maybe forfeiture of contract if we had a contractual relationship though that is a long long stretch of the legal imagination.

Please learn the actual law before you open your mouth and remove all doubt that you are an actual fool and as uneducated towards the law as the average idiot.

I also notice that if you comment on this you have either payed the $25,000 to Floor4 or you are in breach of "theft of service" to which I personally will be happy to find an AG to charge you with same.

Re: What is and isn't theft

For example, if through some sort of legal trickery or some forging of records, someone made it appear that they produced or legally bought the rights to Book A and thus started effectively stealing my royalty payments.

Sorry to be picky, but even that is not theft/larceny though it would definitely fall under criminal fraudulent behaviour especially if monies were wrongfully obtained through the commission of the fraud.

Interestingly since the USA now has instant Copyright on all works (no need to register) in conjunction with the rest of the world, the only way this can possibly succeed is if someone stole your identity which is another criminal offence on it's own.

Since it's inception copyright is really a legal exemption on the natural right of the public to own the ideas and expressions of humanity given to the author/creator of the work so that they have a LIMITED amount of time to exploit their work. That is why it's an infringement to go against some ones legal exemption (copyright) since it is Infringing on that exemption whilst that exemption is in place.

And since it is an exemption this is why Copyright is limited by time and has major qualified defences to any infringement of it that nearly always are to do with public/societal goals.

Re:

I think "Conversion" of Intangible Rights would be an ok (though hard idea to sell to public phrase)

As long as they don't do what they historically did for the old "trespass to person" and call it Assault (Battery). Could not imagine a worse scenario. You trespassed on my copyright, that's Assault of Copyright.. ACK!

Re:

The problem with that theory and It's most likely a wish of the **AA players is that they would LOVE this idea as long as those two horrible things that rear their heads in criminal situations didn't happen. Namely "beyond a reasonable doubt" and "Rules of Evidence"

It's hard to prove third party hearsay that is backed by confabulation and wishful thinking when dealing with evidence and god forbid criminal attorneys/solicitors, prosecutors, and judges who don't want to set criminal precedents that could be used by other criminal cases such as Personal Violence offences and any others.

Re: Re: Re:

Re: Re: Re: Re: Re: Re: Re: You'd be surprised...

No there isn't a problem with them creating works based on the public domain. What there IS a problem with is that they then in turn restrict others using those public domain works by wrapping them up in the copyright of the work they created.

Re: Re: What is and isn't theft

"What has been stolen is the revenue from the rights holder."

For that to be true you first have to prove that the revenue for the rights holder existed in the first place. As MANY people can attribute that what is downloaded would not have been purchased in the first place had the option to download not been available, the revenue simply did not exist in the first place and therefore could not have been stolen in these cases. This is the inherent flaw in the 1 download equals 1 lost sale argument.

Re:

Creating a broader term like this to encompass all of these things together is just another attempt to do exactly the same thing that is the reason why using "steal" or "theft" as a substitute for "infringement" is bad in the first place only from a slightly different angle. It is STILL trying to attribute negative attributes of one act with another that does WHICH IT DOES NOT POSSESS by association only this time it is by proximity instead of a direct one to one association.

Re: Re: Re: Re: Re: Re: Re: Re: You'd be surprised...

Of course they are concerned with those who would otherwise try and take advantage of Disney's work. Is it really so hard to understand their concern?

Again, there is absolutely nothing wrong with anyone creating their own original interpretation of a work that resides in the public domain, even if their new work happens to involve the same subject as the work prepared by Disney.

Re: Re: Re: Re:

My point was that HE claimed he could point out specific instances yet he provided nothing to back up his claim, not that anyone couldn't come up with some instance where the stars were aligned properly it would support the argument.

Re: Re: Re: Re:

Did you actually learn anything in your history classes? That's exactly what happened. Money USED to be tied to GOLD (ie. for every dollar printed by the Treasury, the equivalent amount of gold had to be held by the government). It was called the GOLD STANDARD. (Try reading the actual BOOK The Wizard of Oz sometime. Hint: It's not really about a little girl trying to get home.) When the government decided to start ignoring that and printed more than they did exactly that - devalue it. Except that since they were the government, they could pass laws to try to artificially manipulate it's worth.

Re: Re: Re: Re: Re:

I already was aware that I was using it (somewhat) similarly to "steal your girlfriend", and that some of the actions discussed aren't unlawful.

Nobody has been saying stuff like "sure it's stealing, but people don't get sued for stealing a girlfriend or stealing third base, so why should they get sued for stealing music like this?". They instead most commonly say something more like "it has nothing in common with stealing, you're obviously a shill for RIAA and probably smell bad too, stop beating children".

You're the first to say "fine, use that word as long as you realize you're using it this way".

I need a word for this broader concept, where one unilaterally acquires goods or benefits without being entitled to do so, without specifying or implying anything else (such as "someone else loses something" or "all societies agree about the nature of the entitlement").

I've been using "stealing" for that. Some people are trying to get me to stop.

I'm willing, but not just because people who have an agenda assert that I ought to. If they'll help me out by suggesting a better word -- one that encompasses copyright infringement, bank fraud, plagiarism, trespassing, and beating up kids for their lunch money, because those do have *something* in common that I think is important -- then I'll use that word.

(And I'm not trying to say they're all "exactly the same", or even that they're mostly the same, or that they should be regarded the same, or remedied the same way. I'm just trying to say that they have a critical element in common: the element of unilaterally seizing a benefit that society says you're not entitled to have, which I think is important and often brushed under the carpet.)

Re: Re: Re: Re: Re: Forgot to Mention the Land-Grab

I could be wrong about when commercial copyright infringement (ie. selling unauthorized copies for profit) became a criminal matter and that could have been adopted 1909 instead of 1976 but that still doesn't disprove my point. 1. We aren't really talking about commercial infringement here. We are talking about file sharing (ie. no profit motive) which wasn't criminalized until the DMCA in 1998 and 2. even IF WE WERE talking about commercial infringement (which STILL doesn't meet the definition of theft by the way) ANY criminal law adopted in the 20th or 21st centuries STILL qualifies as relatively recent with regards to the nation's history.

Re: Re: Re: Re: Re: Re: Re: Re: Re: You'd be surprised...

You don't seem to get it. Disney got started by making heavy use of public domain works (i.e. the works of other, not their own). Then, once they had enough money to grease politicians, they ramped up the power of copyright to prevent others from doing it the same way. They took public resources and turned them into their own property which made it impossible for anyone to create new works by transforming Disney's works. That's a double standard, if you ask me. "We can copy others, but you can't copy us." That's ridiculous! Why are they somehow special?

Re: Re: Re: Re:

Well, if you want to go that route, then let me lay out why you're still wrong.

Let's say you mow lawns for a living. You perform a task for which you expect to be paid for. Well, if you did it the way the content business does it, you'd go to someone's house, mow their lawn, and demand they pay you for the work you've done, despite there being no prior agreement to pay. They neither asked nor agreed to pay for your services, yet you did it anyway. Are they at fault for not paying you? Anyone with a brain would say "You should have solicited them first and secured an agreement to pay for services rendered.

If this is a service, then the fault lies with the content industry. They did the work before they secured an agreement to be paid for it. They effectively did the work for free for all intents and purposes. Actually, to be more precise, the artists did perform a service for an agreed payment, but with the publishers. The publishers then tried to sell that mowed lawn as a "product" or their "property".

Re: Re: infringement-theft

Many thanks for your heartfelt concern, but I have wasted my time in other ways than trying to contribute to this wonderfully uplifting industry. But no worries if it dies, there's clearly enough 'music' already in existence to entertain us until the dinosaurs return. Let's hope they have some great new sounds for us.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: You'd be surprised...

No I'm asserting that Disney has made use of other people's works for their own gain, but blocks others from using Disney's works. In essence, Disney thinks it can copy anyone they want, but nobody can copy them.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: You'd be surprised...

No...Disney, just like anyone else is legally able to do, has taken "things" from the public domain, masterfully transformed then into very creative works, and then offered them to the public for their enjoyment. Having made a sizeable investment doing so, it hardly seems unreasonable that the company may not warmly embrace others who seek to use what the company has done to compete with the company in the marketplace.

If you have the wherewithall to create your own original work based upon a work long ago created by the Brothers Grimm, which work is within the public domain, then have at it and take Disney on with your work, instead of trying to cut creative corners by using Disney's work as the foundation of yours.

Re:

one unilaterally acquires goods or benefits without being entitled to do so

"Unilaterally" might be the sticking point here. The one infringing on copyrights has traditional property rights over his or her own copy. In order for infringement to occur, that person must willingly (though unlawfully) distribute copies of it to others.

In this way, it is entirely unlike every other thing that you call "stealing." The people who recieve the copy are not, themselves, getting anything without permission. They are not "stealing." For example, I don't know a single person who would call a someone who bought a bootleg a "thief," even colloquially.

In this case, it's the person who is gaining something by distributing copyright material that is the "thief." And, again, this completely falls down when talking about digital infringement - since most of it is completely non-commercial, and the people who distribute the material are not gaining anything.

In this case, "unlawful sharing" (or some variant) is really the only way to phrase it. I always use the term "unlawful file sharing" myself, or the (more general) "infringement."

But, I'll ask you the same question. What is the "broader concept" that you would use for someone, who:
- Buys a knock-off handbag?
- Buys "grey market" drugs from Canadian pharmacies?
- Makes a mix tape for a friend?
- Creates mash-ups?
- Writes fan fiction?
- Reverse-engineers software?

All of these are (or could be) infringement. In all these cases, "one unilaterally acquires goods or benefits without being entitled to do so." But I've never heard anyone at all call them "stealing."

By the same measure, has not Disney cut the same corners with their use of the public domain? Why are their works sacred over the works of those that are of the public domain? No, it's a double standard that they should be able to make use of the public domain and profit while no one is permitted to make use of the works they derived from the public domain to do the same. All art builds on the art of the past, to deny future generations to ability to do so because rich corporations want to define it as an immutable and distinct item of property is destructive to the progress of art, freedom of speech, and culture. It should be the act of creating that is the commodity being traded, not the results of a rearranged set of ideas.

"Having made a sizeable investment..."

It is wrong to think, due to their investments into those works, that they deserve any right to deny anyone the ability to copy, combine, or transform their works into new expressions. It doesn't matter how much money and time was put into it. That doesn't in itself grant them any rights or entitlements. If Disney can transform public domain works into new expressions, why should they have the power to stop people from transforming those works into new expressions? We stand on the shoulders of our ancestors so that they might help us to see new horizons.

Perhaps you would be willing to provide the names of those works Disney used without permission of the copyright holders. It is easier to discuss matters when relevant and necessary details are provided.

Is there a specific title from the public domain you have in mind when you state that Disney has kept others from creating their own work based upon the public domain title?

Some of Disney's best known works are based upon titles accredited to the Brothers Grimm and available to all as public domain titles. Two that quickly come to mind are Cinderella and Snow White. Interestingly, even though Disney produced its own versions of these works, many others have done the very same. Just a few months ago two studios came out with individual versions based upon Snow White, i.e., "Mirrior, Mirrow" and "Snow White and the Huntsman". I do not recall reading any article that Disney sent either of the studios C&D letters because those studios had the temerity to create a Snow White movie.

Provide some specific examples where Disney has unlawfully appropriated another work and perhaps then we can then have a meaningful discussion.

That was a trade-dress/trademark case having nothing to do with the right to create works of authorship. BTW, the article notes that Disney and the defendant had squared off over the same general issue the year before, and in that case Disney prevailed. Of course, it too had nothing to do with copyright law.

Why it seems to not bother you that Disney lobbies for stronger copyright laws, so that it rarely - and at this rate, it sometimes feels like it may never may never - put anything back into the public domain like the authors of whose works they borrowed from freely, eludes me.

An underpinning of copyright law is the incentive to create and disseminated original works of authorship so that the ideas and information they express can be assimilated by others. Using that original work to create derivative works outside the scope of fair use is not one of the law's goals.

As for "stealing", a word that is repeatedly dismissed here as misleading and inaccurate, one cannot "steal" that which is owned by no one, i.e., copyright no longer pertains to the work.

You also (repeatedly) completely missed the point of why people were referencing stealing. People were responding to an AC that asserted infringement is akin to stealing, not necessarily claiming it to be themselves.

An underpinning of copyright law is the incentive to create and disseminated original works of authorship so that the ideas and information they express can be assimilated by others.

...And so that that body of work will eventually pass into the public domain, so that everyone can use the works without restriction.

This underpins another point, which I don't think has been made in this thread. The only reason copyright is granted is so that society in general can use that "property."

It is a funny kind of property, where "stealing" it is the only reason it exists in the first place.

Hell, I've been doing a lot of this recently. I have a new smartphone, and I like to read books on it while I'm on the subway. I don't want to pay for these books, so I've been reaping the benefits of Project Gutenberg. I've burned through books by Jules Verne, H.G. Wells, and Arthur Conan Doyle.

I took something, without permission of the authors (or their families), and nobody got compensated for their labor. Am I then a "thief?" Is my phone full of "stolen property?"

one cannot "steal" that which is owned by no one, i.e., copyright no longer pertains to the work.

That is completely false. A work in the public domain is not "owned by no one," it is owned by everyone.

Without copyright, any person who owns a copy of the work would have a natural property right to do whatever they pleased with that work. That includes making copies of it, using it to create derivative works, and performing or displaying it publicly, whether for profit or not. Without copyright, everyone has the rights that are granted in 17 USC 106.

Copyright is a "negative right," a right of exclusion: it does not convey any additional property rights upon the copyright holder, only the ability to take away some of the natural property rights of everyone else.

Thus copyright itself is, in a very literal sense, theft. It is taking away property from the people it belongs to - everyone. It may be that society in general benefits by allowing this form of theft, which is the only reason this theft is legal; but theft it is.

That is the reason people are so upset with Disney. Disney has no problem using "property" that is "owned" by everyone - including the commenters. And none of the commenters here begrudge Disney for doing so; they have as much of a right to do it as anyone else.

But Disney does not want other people to have the same rights that it did, so it lobbied for laws that would allow its own theft from the public to continue. Notably, if the current copyright laws were in place when Disney started, the majority of Disney's source material would not be in the public domain.

It is Disney's hypocrisy, selfishness, and thievery that people are upset with. Nobody cares that they used works without permission or compensation, because that is copyright's ultimate goal; they only care that Disney won't allow anyone else the same courtesy.

It's hardly a difficult concept to understand; unless, of course, one can't understand plain English in the distinction between saying all copyright is an affront to society, or that corporate lobbying for terms that go beyond the death of an author - at a minimum - are an affront to even to the original intent of copyright.

But you have a knack for missing the point, it seems. Disney may still have copyright on their works, but this doesn't mean the case for why they should still have copyright over works that are over 40 years old is a sound one, or a logically consistent one. Particularly for a company for whom significant value appears to depend on a healthy public domain.

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"Public domain" is not a "property right" in the slightest. It is, in fact, the absence of a property right

Again, completely false. It is the absence of restrictions on property rights. It's just that those rights are common property rights, instead of private property rights. You can treat any work in the public domain exactly as if it was your own personal property. The only thing you can't do is prevent others from doing the same.

If property rights in public domain works didn't exist, nobody at all could do any of what is enumerated in 17 USC 106. Nobody would be able to copy, distribute, perform, display, or create derivative works to public domain works.

The government didn't "grant me a right" to download books from Project Gutenberg. I wouldn't need them to "grant me a right" to copy and distribute them, even for profit. There is not even a single statute that explicitly grants me the right to do any of these things. It is a property right that I naturally have.

Without property rights in public domain works, copyright would be nothing but a legal license to publish. That is anathema to an open society, and certainly not what copyright was ever intended to be. (Though, believe it or not, I've talked with a few people who think it is).

since the law no longer recognizes the right of exclusion conferred by copyright law.

The "right of exclusion conferred by copyright law" is hardly the only property right that exists. It's also not exactly what is granted by copyright laws - see e.g. statutory royalties, which eliminate the "right of exclusion" altogether.

If you want to get technical, copyright is not a "property" right at all. It's a "de jure" monopoly, granted by the government. Unlike the property rights to public domain works, that monopoly wouldn't exist at all if the public (through Congress) didn't create it.

It is treated as if it is a property right, because it legally convenient to do so. But it is not property, any more than Bell System's pre-1984 monopoly on telephone service made the phone lines Bell System's "property."

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I just thought of the perfect example, that I'm betting has been claimed in this very thread (though I haven't looked through it all).

You hear people, all the time, describe copyright as "the right to copy." That's not what copyright is.

Copyright is "the right in the copy." It is the legal right for copyright holders to dictate what can be done with copies that are not in their possession.

Without copyright, everyone would have "the right to copy." Publishers could sell books, labels could sell music, etc., and none of what they were doing would be against the law. On the other hand, nobody would have "the right in the copy." It's a crucial difference.

While you obviously disagree with my characterization of the public domain, it might be useful to consider the consequences of your opinion in light of cases such as Golan v. Holder. As you recall, Golan involved works of foreign authorship that were in the public domain within the US because the foreign authors did not comply with the then formal requirements of US copyright law. The court held that in the situation associated with the case it was constitutionally permissible to take such works and secure rights under the US' copyright regime (but only for so long as the term remaining in their country of origin). Note: This was a very unique situation that arose from certain treaty obligations requiring the US to abandon its longstanding formality requirements in favor of predominantly European requirements devoid of formalities.

Just had to take a prolonged break at my wife's insistance. She went into our garage to grab a soda, and found herself looking face to face at a 3" black snake (harmless). Pleased to report it is now running free a LONG distance away from my home.

Back to Golan, if as you say works in the public domain are "owned" in common by everyone, then taking away such common ownership and vesting it in a single owner almost certainly is a Fifth Amendment matter which any common owner would be free to pursue as an "owner in interest". In fact, the plaintiff's certainly fit this category, and yet nowhere was this possibility even raised before any of the courts, and with good reason. It simply would not fly as a matter of law for the reason I earlier stated with respect to the legal status of the public domain.

Re: Re: Re: Re:

I believe you are misinterpreting the copyright law. Under Section 106 of the US Copyright Act only a copyright holder has the legal right to make a copy of his/her work.

Your focus seems to be what happens once a copyright holder has made a copy, and then transferred possession of that copy to a third party (typically by license or sale). That is a different issue altogether and involves other legal doctrines.

Re: Re: Re: Re: Re:

I believe you are misinterpreting the copyright law. Under Section 106 of the US Copyright Act only a copyright holder has the legal right to make a copy of his/her work.

If a work is in the public domain, does nobody have the legal right to make a copy of that work?

No, of course not. Everybody does, including what would have been the copyright holders had the work not been in the public domain.

An example is "Night of the Living Dead." Because the distributor failed to follow statutory copyright laws, that film entered the public domain, where it still resides. Does that mean nobody is making copies of it? Hardly.

Dozens of publishers are exercising the exact rights that are granted to copyright holders exclusively in 17 USC 106. The only thing a copyright on that film would have done is taken away those rights. That's the only thing copyright does: it excludes everyone but the copyright holder from exercising rights that otherwise would belong to everyone.

Your focus seems to be what happens once a copyright holder has made a copy, and then transferred possession of that copy to a third party (typically by license or sale). That is a different issue altogether and involves other legal doctrines.

I don't know how you got that idea. My focus is on what property rights people would have in a copy if copyright did not exist. The answer is: all of them. Thus, copyright - by definition - is "theft" of property from the commons.

This is why traditional notions of "stealing" don't work with copyright. People generally think of "stealing" as "taking something without permission" or "taking something without paying for it." But this is exactly what happens with public domain works: you "take" something, without payment, and without permission of the authors (or original copyright holders).

And, in fact, such "stealing" is the entire reason that copyright exists in the first place. Copyright exists to grow the body of work that is available - freely, without permission - to the public. That's obvious when we're talking about works in the public domain. It's also obvious when talking about the idea/expression dichotomy: copyright exists so the public can "steal" the ideas in copyrighted works. (See Feist v. Rural.)

So, when other copyright defenders talk about "thieves," or "pirates," or "making money from the artist's work without paying for it," it's important to realize that the actions they're criticizing are precisely the actions that copyright is ultimately designed to encourage.

If copyright doesn't result in more of this type of "theft," then it is not benefiting the public, and the public (through its representatives) has every right to take copyright away.

Re:

if as you say works in the public domain are "owned" in common by everyone, then taking away such common ownership and vesting it in a single owner almost certainly is a Fifth Amendment matter

If you believe the 17 USC 106 rights are "property" that is "owned" by the authors, then you must also conclude they are "property" that has been "taken" from the commons.

They are not actually property rights - as I said above, copyright is actually a statutory monopoly that is treated as if it was a property right. But since nearly everyone talks about copyright in terms of property rights, then we should talk about the loss to the commons as the loss of property rights, too.

In any case, the Fifth Amendment only refers to private property being taken for public use. I already said the "property rights" in public domain works are not private, since they are not exclusive. Furthermore, copyright turns what was "common property" into "private property." Even though this is done to theoretically benefit the public, I don't think anyone would believe that qualifies as taking "for public use."

On the other hand, if Congress decided to do away with copyright altogether, that wouldn't violate the Fifth Amendment either.

Glad to hear your wife is OK. (I'll refrain from the obvious jokes about your wife and a '3" black snake.')

Re:

Some would say that the rights are property that were taken away from the owners by force of law...

That is in fact what I am arguing (if you assume the 106 rights are actually "property").

Unless those "some" believe that the public domain is "theft" from the authors. In that case, they would be wrong.

Without "force of law," there would be no copyright in the first place. The very first Supreme Court copyright case said flat-out that there is no "common law" copyright. The House of Lords said the same thing sixty years earlier (Donaldson v. Beckett). And these were the only two countries on the planet with copyright laws at the time.

It is against how people naturally act: people want to re-tell stories, share music with their friends, invite people over for movie night, etc. What is legally "copyright infringement" is nothing more than an extension of that.

They'd also be going against several major religions, who have flat-out said that creating abundance from scarcity (e.g. the Biblical allegory of the loaves and fishes) is morally good; and, conversely, that creating scarcity from abundance is morally evil. Copyright infringement does the former; copyright, itself, does the latter.

So, those who think the public domain is "theft" of the natural property of copyright holders, are going against centuries of legal statutes, human nature, and universal moral codes.

Without "force of law," there would be no copyright in the first place.

True. Nevertheless, it cannot be denied that in its absence there is a wide body of work that almost certainly would not have been created and disseminated to the public.

While "music" and "movies" seem to be the primary subject matter discussed here, there is a very wide body of other, unrelated works where the "incentives" do, in fact, "incentivize". Perhaps, rather than painting all types of works with a broad brush, it might be more useful to consider the many types of works that do fall within the subject matter categories associated with copyright law, and then ask the "incentive" question as to each of them individually.

On a final note, while we obviously do not agree on many points (though we do agree on many others), it is a distinct pleasure to engage in exchanges with one who has so obviously taken the time to give this subject much thought and who provides substantive, versus reactionary, comments.

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While "music" and "movies" seem to be the primary subject matter discussed here, there is a very wide body of other, unrelated works where the "incentives" do, in fact, "incentivize".

That is a very difficult thing to quantify. Certainly, there are many successful industries whose products are covered by copyright. But is that success due to copyright?

As a counter-example, let's consider the fashion industry. There is no question that the American fashion industry is a world leader. Yet, fashion is not covered by copyright. It is perfectly legal to copy someone's design and create a knock-off, identical in every way to the original (though trademark law means you can't claim it is the original).

This wasn't always the case. Back in the 1930's, a strict "no-copy" rule was enforced by the Fashion Originators' Guild. They said copying was unethical and immoral, and called it "style piracy." If a retailer sold a knock-off, they were issued a "red card," and they were boycotted by everyone in the Guild.

The only problem with the guild was that it was an illegal monopoly. At least it was according to the FTC, and the Supreme Court agreed in Fashion Originators' Guild v. FTC.

Did the Guild's collapse harm the industry? Quite the opposite. The fact that there are "Red Carpet copycats" actually creates a demand for new designs, resulting in far greater sales of apparel. There's even a name for it: the "piracy paradox."

Johanna Blakely did an excellent presentation about this at TED, which you can watch on YouTube if you like.

So, here we have one industry that would be harmed by copyright laws. There are many other successful industries that don't have copyright protection: the food industry, the automobile industry, furniture design, etc.

The question becomes: If these industries can be so successful and innovative without copyright protection, why do the others need it?

On a final note, while we obviously do not agree on many points (though we do agree on many others), it is a distinct pleasure to engage in exchanges with one who has so obviously taken the time to give this subject much thought and who provides substantive, versus reactionary, comments.

Not a problem. I'm an underground musician, and these sorts of topics (especially regarding music) interest me immensely. That, and I need a way to avoid my Physics homework...

Incidentally, if a few of the commenters here seem a bit reactionary, that's because the usual "pro-copyright" folks here do nothing but call everyone "pirates," call Masnick a "scumbag," and believe Techdirt is a subsidiary of Google.

break one either way

I used to record music off the radio. That became infringent. shows off the the tv. Backup my cassette tape illegal. Convert a dvd to iphone theft. If everything i want to do is breaking the law and there is no legal option it became screw the law. Why didnt they reimurse me when they broke the law and killed my computer with a virus on their cd. Greed begets greed. Price fixing ebooks gives some justificat

break one either way

Price fixing ebooks gives some justification to do what they want. How hard is it to sell a dvd and include a second with the same data in popular formats. A music cd with a second in mp3 with multiple bitrates. People are given so many ways to enjoy media on so many different hardwaRe because patent law forces everyones technology to be different and media companies try to force everyone to rely on them using few solutions. There will always be freetards and companies that act like retards. But give most an honest trouble free option and they will follow

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Incidentally, if a few of the commenters here seem a bit.reactionary, that's because the usual "pro-copyright" folks here do nothing but call everyone "pirates," call Masnick a "scumbag," and believe Techdirt is a subsidiary of Google.
I'm pro-copyright when it works, but unfortunately, the content industries seem to be determined to break it beyond repair. However, take comfort in the fact that my stories' copyright notices contain a general licence for people to copy and share them (except file sharing). Now that's what I call working copyright!

Re: Wrong Word

An idea is absolutely not property. You cannot own nor copyright an idea. Copyright protects the fixed expression of an idea in tangible form, and affords the owner of the expression certain legal protections over that expression, among them, the right to COPY it, distribute it, create derivative works, publicly display the work, and sell it. An owner of that expression is given the right to sell or waive any of these rights at their discretion.

Property itself does not consist of "things". Property is a legal fiction that describes the relationship between people in relation to things, both tangible (physical objects) and intangible (real property such as delineations of land). Similar to copyright, property laws afford owners certain protections, such as the right to use and enjoy the things they have a property interest in, share it with others, exclude it from others, sell it to others, and waive any of these protections at their discretion.

The creation of intellectual property law was in recognition that it was not the same as what we traditionally think of as property in terms of the bundle of rights and protections it affords you, but the spirit is the same. As a western society, we decided that the social wealth we gain from granting certain protections to owners of things, whether they be delineations of land, physical objects, or the tangible expressions of their creativity was valuable.

I don't believe the word property is the problem, as no one is talking about protecting thoughts. The real discussion is whether the move towards criminalizing copyright infringement (i.e. calling it theft, and thus making infringers open to imprisonment and criminal fines) is the best way for society to protect those intellectual property interest-holders' rights. I don't believe it is.